P. v. Killebrew

Filed 11/21/07 P. v. Killebrew CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Douglas E. Weathers, Judge. Affirmed.

Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Kelley Johnson, Deputy Attorney General, for Plaintiff and Respondent.

Chester Ray Killebrew appeals his conviction on one count of possession of cocaine base for sale and one count of sale of cocaine base on grounds of insufficiency of the evidence and the admission of improper opinion evidence. Finding no error, we affirm.

PROCEDURAL HISTORY

Killebrew (hereafter defendant) was charged with possession of cocaine base for sale (count 1) and with sale of cocaine base (count 2). (Health & Saf. Code, 11351.5, 11352.) The information alleged that he had a previous conviction for possession of contraband for sale (Health & Saf. Code, 11378.5) within the meaning of Health and Safety Code section 11370.2, that he had one prior strike conviction, and that he had served three prior prison terms. (Pen. Code, 667, subds. (c), (e)(1), 1170.12, subd. (c)(1), 667.5, subd. (b).)

A jury convicted defendant on both counts. In a separate court trial, defendant admitted the prior conviction and prior prison term allegations. The court sentenced defendant to a total term of 16 years. The court imposed the upper term on count 1, doubled to 10 years, with a consecutive term of three years pursuant to Health and Safety Code section 11370.2 and three consecutive one-year terms pursuant to Penal Code section 667.5, subdivision (b). The court imposed a concurrent 13-year term for count 2. Defendant filed a timely notice of appeal.

FACTS

At approximately 7:00 p.m. on September 13, 2005, Riverside County Probation Officer Mel Dittemore, and several Riverside police officers, all members of the so-called PAC (Police and Corrections) team, went to a residence at 2519 Bunche Place to conduct a probation compliance check on Semaj Palamor, who resided at that address. Palamor was on probation for a number of offenses, including possession of a controlled substance. As they approached the residence on foot, several members of the team observed defendant and Lawrence Hale, who were standing close together on the driveway. The team members saw defendant and Hale make gestures with their right hands. These gestures appeared to them to be a hand-to-hand sale of narcotics. However, because of their position with respect to the two men, none of the team members saw the mens hands touch or saw anything handed from one man to the other.

Upon noticing the uniformed team, Hale began to walk away. An officer followed Hale, who refused to stop when ordered to do so. As he was being apprehended, Hale put his hand to his mouth in an exaggerated manner and made a chewing motion. Police believed Hale had ingested an illegal substance. Because he claimed to have difficulty breathing, an ambulance was called and he was taken to the hospital. He was given a charcoal solution to drink. A blood sample taken at the hospital showed an amount of cocaine in his system which was consistent with his having ingested several rocks of cocaine base at about 7:00 p.m.^[1] Hale told one of the officers shortly after the incident that he had purchased three rocks of cocaine base from the other guy. He claimed that he had faked ingesting it but had actually thrown the cocaine into the bushes at the Bunche Place house. An extensive search of the area did not reveal any illegal substances. Because no cocaine was found on his person or in the area where he claimed to have discarded it, Hale was charged only with being under the influence of cocaine.

Dittemore and other officers searched the residence. In one bedroom, Dittemore found a glass cocaine pipe on top of a chest of drawers. He found a pay/owe sheet on top of a chest of drawers as well. On a shelf in the closet, which contained both mens and womens clothing, Dittemore found 1.7 grams of rock cocaine inside a Mountain Dew carton. Defendants cell phone and some Social Security Administration paperwork mailed to defendant at an address on Angelo Street were found in the bedroom. There was also an invoice for cable services performed that day at the Bunche Place address which had what appeared to be defendants signature on the acknowledgement line. Defendant was not the customer listed on the invoice, however. One of the names on the pay/owe sheet was Tosha. Tosha was the name of a woman who was present in the Bunche Place house at the time of the incident.

A police detective testified that in his opinion, the cocaine was possessed for purposes of sale, based primarily on the quantity.

Defendant gave his consent for a search of his person. The officer found an empty plastic baggie of a type commonly used to package drugs for sale, a folding knife and cash in defendants front pants pocket.

Defendant did not reside at the Bunche Place house. He worked as a free-lance handyman and car mechanic, and was doing some work at the Bunche Place house. He had been at the house approximately seven times, each time solely to work. He lived with his brother and his brothers family on Angelo Street. On the day of his arrest, defendant had been with Tosha in the bedroom where the cocaine base was found. They had engaged in a sexual act and she was going to help him fill out the Social Security paperwork. He denied that the sex was to be payment for cocaine.

LEGAL ANALYSIS

SUBSTANTIAL EVIDENCE SUPPORTS THE CONVICTION FOR POSSESSION OF COCAINE BASE FOR SALE

To obtain a conviction of possession of a controlled substance for sale, the prosecution must prove that the defendant had physical or constructive possession of the substance and knowledge of its presence. (People v. Newman (1971) 5 Cal.3d 48, 52-53, overruled on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 862.) Constructive possession occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another. (People v. Newman, supra, 5 Cal.3d at p. 52.) Like any other element of the offense, possession may be proven circumstantially. (People v. Palaschak (1995) 9 Cal.4th 1236, 1242.)

Defendant contends that his conviction on count 1 must be reversed because there was insufficient evidence that he had dominion and control over the bedroom closet where the cocaine base was found and insufficient evidence that he had knowledge of the presence of the drug.

In assessing a claim of insufficiency of the evidence, we review the entire record in the light most favorable to the verdict to determine whether it discloses substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Substantial evidence is evidence which is reasonable, credible, and of solid value. (People v. Gurule (2002) 28 Cal.4th 557, 630.) We resolve all conflicts and indulge all reasonable inferences from the evidence to support the judgment. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.)

We agree with defendant that the evidence tended to show that he was merely a visitor in the bedroom. The issue, however, is not whether he exercised dominion and control over the bedroom but whether he exercised dominion and control over the cocaine base, that is, whether he possessed it. (People v. Palaschak, supra, 9 Cal.4th at p. 1242.) Evidence that he had control over the place where the cocaine base was found would permit the inference that he also exercised dominion and control over the contraband. (People v. Newman, supra, 5 Cal.3d at p. 52.) However, the absence of such evidence does not compel the converse inference, i.e., that the cocaine base did not belong to defendant. Here, regardless of defendants dominion and control over the bedroom, or lack thereof, a reasonable trier of fact could infer from the evidence as a whole that the cocaine base in the bedroom closet belonged to defendant.

As we discuss below, there was substantial evidence that defendant sold cocaine base to Hale. The pay/owe sheet which was found in the bedroom indicated that Tosha was a customer of the person who owned the pay/owe sheet. Defendant was not listed as a customer. However, he had, by his own admission, been in the bedroom with Tosha. This evidence, combined with the fact that defendant sold cocaine base to Hale, supports the inference that the pay/owe sheet was defendants. Along with Detective Kipps testimony that a drug dealer will typically have a stash of inventory nearby but not on his person, this evidence also supports the inference that the cocaine in the bedroom closet belonged to defendant.

In addition, defendants own testimony may have convinced the jury that he was lying when he denied having been involved in any drug transactions that day. He initially denied having been in the bedroom where the cocaine base was found. Upon being confronted with a recording of his statement to police, in which he stated that he had been in the bedroom with Tosha engaging in a sexual act, defendant admitted, apparently with great reluctance, that he had been in the bedroom getting some head from Tosha. He insisted that he had only been in the bedroom for a minute or two before he had to interrupt the sexual activities because someone was calling [him] out. However, he was also able to describe aspects of the rooms layout and furnishings in considerable detail. Jurors could have inferred a consciousness of guilt from his false denial and subsequent belated and not altogether convincing explanation of his presence in the bedroom. In addition, jurors had the opportunity to observe defendants demeanor when he testified. This too may have convinced them that he was not being truthful and that the cocaine base was his.^[2]

Taken all together, the evidence reasonably supports the inference that defendant owned the cocaine base found in the bedroom closet.

THERE WAS SUBSTANTIAL EVIDENCE THAT DEFENDANT SOLD COCAINE BASE TO HALE

Defendant also contends that the evidence was insufficient to support his conviction on count 2, the sale of cocaine base to Hale. We disagree. As noted above, Hale told a police officer that the other guy sold him three rocks of cocaine. The officer understood him to mean defendant, the other guy who was with him in front of the house when the police arrived. The testimony of a single witness, if it is not inherently improbable or physically impossible, is sufficient to support a conviction. (People v. Young (2005) 34 Cal.4th 1149, 1181.)

Hales conduct upon the arrival of the police is also substantial evidence that a sale had just taken place. As soon as he saw the police, he turned and walked away. He refused to stop when ordered to do so. When the officer grabbed his shoulder, he appeared to place something in his mouth and chew it. The amount of cocaine in his blood was consistent with his having ingested cocaine at about that time. In conjunction with the officers description of actions consistent with a hand-to-hand purchase of drugs, this evidence rationally supports the inference that Hale had just purchased the cocaine base from defendant.

DEFENSE COUNSELS OBJECTION THAT QUESTIONS CALLED FOR A LEGAL CONCLUSION DOES NOT PERMIT REVIEW OF DEFENDANTS CONTENTION THAT THE TESTIMONY CONSTITUTED AN IMPROPER OPINION ON AN ULTIMATE FACTUAL ISSUE

Defendant contends that the court erred prejudicially in permitting prosecution witnesses to offer their opinions that the presence of items related to defendant in the bedroom where the cocaine base was found constituted dominion over the bedroom and the cocaine. He contends that the error requires reversal of his conviction on both counts.

The issue arose as follows. The prosecutor asked Officer Zackowski why, after the cocaine was discovered, he began to search the room. Zackowski replied, To look for any kind of dominion for [defendant]. Asked what he meant by dominion, Zackowski replied, Establish whose room it was, whose property was in the room, any mail, paperwork, identification. After Zackowski described the papers he found which had defendants name on them, the prosecutor asked, And you mentioned to us that you associated them as dominion belonging to [defendant]. How is it that you associated these documents as dominion associated with [defendant]? Zackowski replied, It has his information on it. Defense counsel objected that this was a legal conclusion. The court overruled the objection, stating that the officer could explain his reasoning.

Later, the prosecutor asked Probation Officer Dittemore if he was familiar with the term dominion and control. Dittemore said that he was, and explained, That means that if you have items in the room with your name on them, that sort of thing, that means that you probably have been in that room or stayed in that room, and that means that you have control over those items in that room. So thats dominion and control. Defense counsel did not object. Next, the prosecutor asked Dittemore if he had found items of dominion and control belonging to anyone other than the defendant in the bedroom. Dittemore replied, No. Defense counsel objected that [t]his calls for a legal conclusion. After posing some additional questions about items found or not found in the room, the prosecutor asked, And based on your training and experience, the items of dominion and control, the rock cocaine that you found in this room, in your opinion, based on that training and experience, who did you believe had control over this particular room? Defense counsels objection that the question called for a legal conclusion was overruled. Dittemore replied, I believe that [defendant] did.

Whether the defendant actually or constructively possessed a controlled substance, or whether he exercised dominion and control over the place where it was found, are factual questions to be determined by the trier of fact. (People v. Palaschak, supra, 9 Cal.4th at p. 1242; People v. Scheib (1979) 98 Cal.App.3d 820, 828-829.) Because defendants exercise of dominion and control over the room or over the cocaine base is not a legal issue but a factual one, defense counsels objection that the questions called for a legal conclusion was not well taken.

Defendant now contends that the opinions Zackowski and Dittemore expressed were improper opinions on the ultimate factual issue of defendants possession of the cocaine base. That was not, however, the ground on which trial counsel objected. Therefore, even if the opinions were improper, we cannot reverse the conviction on that ground: [Q]uestions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal. [Citation.] (People v. Hill (1992) 3 Cal.4th 959, 989, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

Acting P.J.

We concur:

/s/ Richli

J.

/s/ King

J.

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^[1]Hale testified for the prosecution with apparent reluctance. He told multiple conflicting stories about the evenings events. He also made contradictory statements to the police officer who questioned him that evening.

^[2]The cold record cannot give the look or manner of the witnesses; their hesitations, their doubts, their variations of language, their precipitancy, their calmness or consideration. A witness may convince all who hear him testify that he is disingenuous and untruthful, and yet his testimony, when read, may convey a most favorable impression. Did plaintiff and her mother testify with the conviction and assurance compatible with truthfulness; or did either of them give testimony haltingly as though laboring under the handicap of apprehension and uncertainty or did either of them give it glibly as though a tale learned by rote for the purposes of the courtroom? These are questions which can only be answered by the trier of fact. The court having seen and heard the parties may well have concluded that there was collusion; that the plaintiffs testimony was a fabric of fancy and exaggeration woven to lift her from bonds now distasteful; and that the testimony of plaintiffs mother was a recital of rehearsed evidence. (Maslow v. Maslow (1953) 117 Cal.App.2d 237, 243, overruled on other grounds in Liodas v. Sahadi (1977) 19 Cal.3d 278, 287.)